By David Jacobs | The Center Square
A Baton Rouge-based district judge on Thursday ruled unconstitutional a state law allowing one chamber of the Legislature to overturn a governor’s emergency order, setting the stage for an appeal.
Judge William Morvant with the 19th Judicial District said he wished the case could have skipped state court and gone straight to the Louisiana Supreme Court, since the justices will be the final arbiters.
Shortly before the Legislature’s recent special session ended, 65 of the 68 Republicans in the state House of Representatives signed a petition to suspend the governor’s COVID-19 emergency order for seven days. They were doing so under an obscure law that has never been tested in court that allows one chamber to end a state of emergency by petition.
Some House members hoped the suspension would get Edwards to negotiate with them and consider lifting or loosening some of the rules, which include limitations on crowd sizes and the amount of people allowed inside bars and restaurants and a mandate to wear mouth and nose coverings inside businesses.
Attorneys for Gov. John Bel Edwards say state laws regarding the governor’s powers during a declared disaster or public health emergency make clear that his proclamations, such as mandates meant to limit the spread of the new coronavirus, have the force of law. So if lawmakers want to repeal those orders, they have to pass a law, which requires both chambers, the administration argues.
“To do what the 65 House members want to do, they have to pass a law,” said James Garner, an attorney for the governor. “A petition cannot invalidate a law.”
Attorney General Jeff Landry’s office, on behalf of House Speaker Clay Schexnayder, defended the law. Solicitor General Liz Murrill said the emergency powers statutes allow the Legislature to delegate some of its authority to the governor. The petition process is the tool the Legislature gave itself to claw that authority back when necessary, she said.
“[The governor] can’t make law with an executive order,” Murrill said. “There has to be a mechanism to curb his power.”
Morvant said if the law establishing the petition process had required both chambers, and the House and Senate both were on board, he would have quickly ordered the governor to comply with the petition and issue a proclamation rescinding the emergency rules. But the law as written doesn’t pass constitutional muster, he said.
“It’s up to the Legislature to correct their mistake,” Morvant said.
Because of the constitutional question, the case can skip the state appellate court system and proceed directly to the Louisiana Supreme Court.
“Today, the Court effectively ruled the Governor may make law without any legislative oversight – this turns Louisiana into a dictatorship under King Edwards,” Landry said in a prepared statement responding to the ruling. “We will appeal Judge Morvant’s rulings and pray the Supreme Court will uphold the checks and balances upon which our government was founded and has been ruled.”
Edwards called the ruling “a victory for public health.”
“I have long said the law some members of the House were attempting to use is unconstitutional and I am pleased the judge agreed,” the governor’s statement reads in part. “What today’s hearing means for the people and businesses of Louisiana is that our state remains in Phase 3, including with a statewide mask mandate in effect, based on my most recent proclamation.”
Morvant had not planned to rule on the statute’s constitutionality Thursday. Schexnayder and Landry’s office had asked him to order Edwards to obey the petition and issue a proclamation rescinding his emergency order. The judge declined to do so, saying the petition addressed an order Edwards issued in October that has since expired and been replaced.
But during the course of the hearing, Morvant expressed doubt about the petition statute’s constitutionality.
“In order for them to basically repeal something that has the force of the law, I do think that the House and the Senate would have to be in it,” he said.
The AG’s office suggested Morvant could go ahead and rule on the constitutional question Thursday, which would allow the case to quickly reach the state Supreme Court. Morvant said he would do so if both parties asked him to, and after a brief recess, both sides said they had agreed to ask for an immediate ruling.
The hearing was held on an online platform, which led to some confusing and even humorous moments. At one point, an attorney could not access the meeting because so many members of the public were watching and the court’s license apparently only allowed for up to 300 participants.
One observer interrupted the proceedings, causing Morvant to angrily throw him out of the virtual courtroom, saying the man would have been held in contempt if he had tried that in a physical court. Another observer, or possibly the same person, turned their camera on and began posting notes.
During one recess, a young woman who appeared to be watching the hearing while lying in bed with a stuffed animal asked if she had time to grab something to eat during the break.
“This is the craziest hearing I’ve ever seen and people don’t seem to realize the difference between Judge Judy and real court,” Morgan Lamandre, an attorney and former candidate for the legislature, mused on social media.